THE QUEEN V. CHAN FUK KEUNG

IN THE COURT OF APPEAL

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J U D G M E N T

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Kempster, J.A. :

1. On 11th November 1987 in the High Court Chan Fuk Keung, charged with attempted rape, pleaded guilty to indecent assault and on 4th December was sentenced by Wong J. to three years imprisonment. Against that sentence he seeks-leave to appeal.

2. The facts of the matter were agreed and showed that at the material time the applicant was living in close proximity to a family having a seven-and-a-half-year-old daughter who was the victim of the assault. During the previous May he had married in China but his wife did not and, perhaps, was unable to accompany him back to Hong Kong.

3. Noise from childrens' play on 12th July 1987 awakened the applicant from his sleep. He reprimanded the children, but was then apparently overcome with sudden desire in relation to this little girl whom he pushed to the floor and stripped of her nether garments. He then lay on top of her with his privy Parts adjacent to hers. It was an isolated incident by a man separated from his newly married wife which, apparently, has caused the child concerned no lasting damage.

4. The trial judge was at pains to secure reports from a psychiatrist and from the probation service. When sentencing the applicant he appears to have taken into account all the considerations which were material to that exercise including the plea of guilty and the fact that the victim had been saved by such plea from the embarrassment and distress which giving evidence in open court would have occasioned her. He also took into account the applicant's clear record but did not specifically remind himself that this was an uncharacteristic and isolated incident. We are not satisfied that he gave sufficient effect to the mitigating factors.

5. Mr. Percy on :behalf of the applicant has cited very many authorities to its but it suffices to say that, in our view, the sentence of three years' imprisonment for an offence carrying a maximum sentence of five years was, in the circumstances, inordinate. We consider the appropriate sentence to be one of eighteen months.

6. We allow the application for leave to appeal against sentence, treat this as the hearing of the appeal and substitute for the sentence of three years' imprisonment one of eighteen months.